What You Can Do Today to Stop Brand Sponsored Piracy Through Touring Contracts or Sponsor Deals: Artists Helping Artists

by Chris Castle

If you are like most artists, you feel overwhelmed by the alliance of Big Tech and Fortune 500 companies allied against us in the intricate network of brand sponsored piracy.  (If you need more background on what “brand sponsored piracy” means, just look around on the Trichordist or on MusicTechPolicy and you’ll get the idea.)  From Google search to Chilling Effects, some artists would like to know what they can do to fight back.  Of course, if artists wanted to fight piracy full-time, they would be cops not artists.  So we need to find ways to leverage your time more effectively and try to find everyday ways that artists can help themselves and each other to fight back.

You may not be aware of it, but clubs, tours and especially festivals or event programming take ads online.  Sometimes these ads appear on pirate sites.  Here’s an extreme example from the illegal lyric site, Lyrics007.com that rips off songwriters, in this case Adele:

Beyonce, Adele and the Super Bowl Exploited by Pepsi

Do I think that Beyonce knew that her name and likeness would be plastered all over illegal music sites?  Of course not.  Did the NFL know?  Unlikely.  Did Pepsi know?

Now that is a more difficult question.  The problem that these big brands have is that someone always knows.  Someone at their ad agency also definitely knows.  They’ll give you a big song and dance about it’s a big system, millions of transactions, but it is simply not possible that no one knows, yet a brand the size of Pepsi–a company that has been a very good friend to the music business, by the way–spends millions on an advertising campaign without knowing where its ads are going?

Put Them On Notice

Thanks to David Lowery, Camper Van Beethoven and Cracker, artists have come up with an easy way to create some incentives for their touring partners to take responsibility for where the promoters advertise their shows.  And this concept could fit in every artist agreement from an one-nighter agreement, to a recording agreement, to Beyonce’s Super Bowl promotion with Pepsi or any other event-driven advertising campaign.

The artist can tell them no.

With a simple contract clause that could go in the artist’s agreement (including in the tour rider), an artist can prohibit the artist’s work from being advertised on pirate sites.  Violating this clause could put the promoter in breach–but the point isn’t to sue people.  The point is to have a dialog, raise awareness and get people to be more careful.  Offer promoters a competitive advantage to get the deals in the first place.  If you want repeat business with an artist, don’t let the artist see ads show up on pirate sites.

So what’s a pirate site?  Big Tech would like you to believe that it is only sites that have been adjudicated an infringer in a final, nonappealable judgement before the highest court in every country of the world.

That’s obviously bunk and designed to make  you feel helpless because only Big Tech can afford that kind of litigation, so naturally that’s the bright and shiny object they want you to focus on.

Remember–you are talking about a private contract.  Your private contract.  How and where your show is marketed is a function of how much you trust your promoter to market your name…your brand…so it is absolutely reasonable for you to want to control how you are presented to your fans and to the general public when you permit someone else to make decisions about that marketing, just like you would decide that the headliner’s name came first in billing.

Meaning that if you are making a private contract, you are in control of your marketing (at least generally) and you can negotiate those terms.  The list of sites you want to exclude–if any–is up to you, a subjective decision.

You could also decide that you want the promoter to be able to refer to an objective list, that is, a list determined by a third party who you both agree will reasonably set the standard.  The USC-Annenberg Innovation Lab’s Transparency Report uses the Google Transparency List.  This is a good list, but Google has some pretty large exclusions from that report.  So the language that Camper and Cracker like also includes the US Trade Representatives Notorious Markets List, which is much shorter than the Google list, but uses US Government resources in its determination.

Suggested Contract Language

If you decide you want to go this route, the Camper/Cracker antipiracy clause covers three bases, which I think are probably good enough:  The USTR List, the Google List, and whatever list the artist may come up with that isn’t on either of those lists.  (The artist doesn’t have to give a list, but reserves the right to do so–the artist may also add back sites that USTR or Google would exclude.)

Here’s the language (“BUYER” usually refers to the talent buyer or promoter):


Obviously, this is not meant as legal advice and you should confirm with your own lawyers how this language might affect your rights under the particular agreement, but it should be a good starting place for any show agreement that is based on the American Federation of Musicians “One Nighter” agreement or the equivalent.This language could be included in a watermark on any pdf version of a show agreement, or placed in the artist’s rider.

Flow Down Language

In more complex situations, you may wish to consider adding it as a flow down provision in a promoter agreement that requires the promoter to include the language in any show agreements.  A flow down provision is a clause that anticipates the other side will be empowered to make many contracts with third parties that give effect to the principal two-party agreement, and one side wants to control certain aspects of those third party contracts without negotiating or signing them.

For example, a US promoter might buy a 50 city tour and have an overall deal with the band.  The US promoter then goes out and contracts with local promoters for each of the 50 shows.  The artist may want to get the US promoter to promise the each of these 50 contracts will have certain clauses to protect the artist often relating to staging, insurance, venue sales and advertising.  That’s a good place to put the antipiracy clause, but the artist is not necessarily a party to those agreements.

Artists Helping Artists

It is easy to see how this language could be adopted in sponsorship or event agreements, and i  t would go a long way to raising awareness of the situation and incentivizing all concerned in the right way.

It’s nothing personal, it’s just business.

First USC-Annenberg Brand Supported Piracy Report and Google Response

Professor Jonathan Taplin of the USC-Annenberg Innovation Lab released the first monthly report on brand supported piracy that demonstrates how major brands make pirates rich (not to mention the ad networks that take a cut–or some might say a vigorish–along the way.

[The USC Annenberg Lab Advertising Transparency Report details] the Online Ad Networks support of the major pirate movie and music sites around the world. The top ten ad networks placing the most ads to Pirate sites are:

  1. Openx
  2. Google (including Double Click)
  3. Exoclick
  4. Sumotorrent
  5. Propellerads
  6. Yahoo (including Right Media)
  7. Quantcast
  8. Media Shakers
  9. Yesads
  10. Infolinks

The list of top infringing sites was compiled using the Google Transparency Report (http://www.google.com/transparencyreport/removals/copyright/domains/?r=last-month) of domains with the most DMCA Takedown requests.

The Los Angeles Times reported that Levi’s is one brand that responded immediately:

Jeans maker Levi’s took swift action when Taplin presented evidence that the clothing company’s ads had appeared on file-sharing sites.

“When our ads were running unbeknownst to us on these pirate sites, we had a serious problem with that,” said Gareth Hornberger, senior manager of global digital marketing for Levi’s. “We reached out to our global ad agency of record, OMD, and immediately had them remove them…. We made a point, moving forward, that we really need to take steps to avoid having these problems again.”

Google, of course, had a carefully parsed response to the Times:

“To the extent [the study] suggests that Google ads are a major source of funds for major pirate sites, we believe it is mistaken,” a Google spokesperson said. “Over the past several years, we’ve taken a leadership role in this fight. The complexity of online advertising has led some to conclude, incorrectly, that the mere presence of any Google code on a site means financial support from Google.” (emphasis added)

Right.  Of course, this may well be a true statement–except the issue isn’t only about “Google ads”, that is, ads for Google products like this ad for Google Play on a pirate lyric site.

google ads sponsored links 2

And even if they meant any ad served by Google for any product, what if Google ads are a minor source of funds for major pirate sites?  Or are a major source of funds for minor pirate sites?

And what if the “mere presence of Google code” includes the Google ad publisher account number for the pirate?  Does that still count as “mere”?

Isn’t this called a nondenial denial?

Lyrics007 Google Ads Code 1